[Federal Register: October 17, 2006 (Volume 71, Number 200)]
[Notices]
[Page 61027-61031]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17oc06-62]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[I.D. 100306G]
Incidental Takes of Marine Mammals During Specified Activities;
Maintenance Dredging Around Pier 39, San Francisco, California
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; proposed incidental take authorization; request for
comments.
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SUMMARY: NMFS has received an application from the Bay Marina
Management Incorporated (BMMI) for the re-issuance of an Incidental
Harassment Authorization (IHA) to take small numbers of marine mammals,
by Level B harassment only, incidental to dredging on the west side of
the Pier 39 Marina on the San Francisco waterfront, CA. NMFS issued an
IHA for these activities in October, 2005; however, BMMI will be unable
to complete the work by the time the 2005 IHA expires on October 16,
2006. Therefore, BMMI has requested a new IHA to cover the completion
of the previously analyzed and authorized action. Pursuant to the
Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its
proposal to issue an IHA to BMMI for the take, by Level B Harassment
only, of small numbers of California sea lions and Pacific harbor
seals.
DATES: Comments and information must be received no later than
November 16, 2006.
ADDRESSES: Comments on the application should be addressed to Michael
Payne, Chief, Permits, Conservation and Education Division, Office of
Protected Resources, National Marine Fisheries Service, 1315 East-West
Highway, Silver Spring, MD 20910-3225. The mailbox address for
providing email comments is PR1.100306G@noaa.gov. NMFS is not
responsible for e-mail comments sent to addresses other than the one
provided here. Comments sent via e-mail, including all attachments,
must not exceed a 10-megabyte file size.
A copy of the application containing a list of the references used
in this document may be obtained by writing to the address specified
above, telephoning the contact listed below (see FOR FURTHER
INFORMATION CONTACT), or visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications
.
Documents cited in this notice may be viewed, by appointment,
during regular business hours, at the aforementioned address.
FOR FURTHER INFORMATION CONTACT: Jolie Harrison, Office of Protected
Resources, NMFS, (301) 713-2289, ext 166.
SUPPLEMENTARY INFORMATION:
Background
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
direct the Secretary of Commerce to allow, upon request, the
incidental, but not intentional, taking of marine mammals by U.S.
citizens who engage in a specified activity (other than commercial
fishing) within a specified geographical region if certain findings are
made and either regulations are issued or, if the taking is limited to
harassment, a notice of a proposed authorization is provided to the
public for review.
Authorization shall be granted if NMFS finds that the taking will
have a negligible impact on the species or stock(s), will not have an
unmitigable adverse impact on the availability of the species or
stock(s) for subsistence uses, and that the permissible methods of
taking and requirements pertaining to the mitigation, monitoring and
reporting of such takings are set forth. NMFS has defined ``negligible
impact'' in 50 CFR 216.103 as ''...an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival.''
Section 101(a)(5)(D) of the MMPA established an expedited process
by which citizens of the United States can apply for an authorization
to incidentally take small numbers of marine mammals by harassment.
Except with respect to certain activities not pertinent here, the MMPA
defines ``harassment'' as:
any act of pursuit, torment, or annoyance which (i) has the
potential to injure a marine mammal or marine mammal stock in the
wild [Level A harassment]; or (ii) has the potential to disturb a
marine mammal or marine mammal stock in the wild by causing
disruption of behavioral patterns, including, but not limited to,
migration, breathing, nursing, breeding, feeding, or sheltering
[Level B harassment].
Section 101(a)(5)(D) establishes a 45-day time limit for NMFS
review of an application followed by a 30-day public notice and comment
period on any proposed authorizations for the incidental harassment of
marine mammals. Within 45 days of the close of the comment period, NMFS
must either issue or deny issuance of the authorization.
Summary of Request
On September 14, 2006, NMFS received a request from BMMI to re-
issue an IHA for the take, by harassment, of small numbers of
California sea lions (Zalophus californianus) and Pacific harbor seals
(Phoca vitulina) incidental to the maintenance dredging the I, J, and K
Docks on the west side of Pier 39 Marina on the San Francisco
waterfront, California. NMFS issued an IHA for these activities in
October, 2005 (70 FR 69955); however, BMMI will be unable to complete
the work by the time the 2005 IHA expires on October 16, 2006.
Therefore BMMI has asked for a new IHA to cover the completion of the
previously analyzed and authorized action.
[[Page 61028]]
Description of the Activity
BMMI will complete the maintenance dredging begun before the
previous IHA expired using a small, self-contained clamshell-style
crane barge between docks I, J, and K at the Pier 39 west marina. These
maintenance measures are necessary to maintain safe navigation depths
at the marina, which currently has reduced water depths attributed to
the accretion of bay sediment. The dredging at Pier 39 will remove
sediment to create water depths in the project area of 9 ft (2.7 m)
Mean Lower Low Water (MLLW), plus an additional two-foot overdredge
allowance. Dredging design area limits (footprints) include the faces,
approaches, and entrance channels to each berthing area up to the limit
of the adjacent pier. Dredging will occur between June 1 and November
30 to avoid impacts to steelhead trout and chinook salmon.
The completion of the dredging operations at the Pier 39 west
marina will occur in the last two weeks of November 2006, if at all
possible, or in the summer of 2007. The complete project, which was
authorized in the 2005 IHA, was expected to take approximately one to
two weeks to complete. This IHA will cover any part of that work that
was unable to be completed prior to October 17, 2006, and no work will
be conducted that was not already analyzed in the previous IHA. Dredge
machinery will operate from 8 a.m. to 3:30 p.m. daily. Approximately
13,000 yd\3\ (9,939 m\3\) of material will be removed. Dredged material
will be tested for pollutants and toxins by the Dredge Material
Management Office prior to approval to begin dredging, and dredged
materials will be deposited in accordance with local, state and Federal
regulations. Once removed, the dredged material will be transferred to
Piers 96/98, which are owned and operated by the Port of San Francisco,
and from there it will be disposed of at an approved upland disposal
site.
The proposed dredging of the Pier 39 west berthing area will focus
on the channels and slips of I and J docks and half of the channel
between J and K docks. The original K dock was destroyed by the
combined weight of hundreds of California sea lions that frequently use
the area as a haul-out. Pier 39 replaced the damaged dock with a number
of ten by twelve-foot floats for the sea lions to use. Since there are
no actual berthing sites at K dock, no dredging will be necessary in
the area immediately surrounding or under K dock. The crane barge will
be situated at the furthest distance possible from K dock during each
dredging episode. The closest that the barge will be to the K dock
haul-out is when dredging the channel between J and K docks. When the
barge is dredging this channel it will be moored to the bayside of J
dock and extend the clamshell dredge arm out into the channel, towards
K dock. Since the distance between J and K docks is 100 ft (30 m) and
the barge is 30 ft (9 m) wide, it will never be positioned closer than
50 ft (15 m) to K dock at any time during the dredging project.
Description of Habitat and Marine Mammals Affected by the Activity
The marine mammal species known to be present at the Pier 39 Marina
area are the California sea lion (Zalophus californianus) and the
Pacific harbor seal (Phoca vitulina). Since 1993, a single adult male
Steller sea lion (Eumetopias jubatus) has been observed hauled out on K
dock intermittently during the months of July and August, and
occasionally in September (30 sightings in the last 10 years). However,
this project will not affect the Steller sea lion because dredging
activities will be halted if a Steller sea lion is observed.
Additional information on these species can be found in Marine
Mammal Stock Assessment Reports, which are available online at: http://www.nmfs.noaa.gov/prot_res/PR2/Stock_Assessment_Program/sars.html
.
California Sea Lions
California sea lions range from southern Mexico to southwestern
Canada. In the United States, they breed during July after pupping in
late May to June, primarily in the Channel Islands of California. Most
individuals breed on the Channel Islands off southern California and
off Baja and mainland Mexico, although a few pups have been born on Ano
Nuevo Island and this year a pup was born on the docks at Monterey and
subsequently transferred to Ano Nuevo Island with its mother. Following
the breeding season on the Channel Islands, most adult and sub-adult
males migrate northward to central and northern California and to the
Pacific Northwest, while most females and young animals either remain
on or near the breeding grounds throughout the year or move southward
or northward, as far as Monterey Bay.
Since nearing extinction in the early 1900's, the California sea
lion population has increased and is now growing at a rate of 5.4 to
6.1 percent per year (based on pup counts) with an estimated minimum
population of 138,881 animals. Actual population numbers may be as high
as 237,000 to 244,000 animals. The population is not listed as
``endangered'' or ``threatened'' under the Endangered Species Act
(ESA), nor is this species listed as ``depleted'' or as a ``strategic
stock'' under the MMPA.
California sea lions first appeared at Pier 39 in September 1989.
Numbers of hauled-out sea lions were relatively low the first year and
K Dock was only used as a haul out from late summer through the winter.
Within a few years, larger numbers of sea lions were observed at K Dock
and they began using the haul-out throughout the year. The Marine
Mammal Center (MMC) began monitoring California sea lions at Pier 39 in
the late 1990's and counts indicate peak usage of K dock at Pier 39 in
May and early June, just prior to the breeding season. Although numbers
decrease during mid-summer (when most adults relocate to the rookeries
for pupping and breeding) some sea lions of all age classes remain in
the area and continue to haul out at Pier 39. Within the dredging work
window (June 1 to November 30) the largest numbers of California sea
lions are found at K Dock in the late summer and fall. The highest
number of individuals ever observed at once between June 1 and November
30 at Pier 39 to date was 1244, in August of 2003. If the number of
individuals observed at one count is averaged by month, from June to
November, since 2000, the averages range from 169 for July to 709 in
September. Since monitoring began in 1991, only 10 California sea lion
pups have been observed at Pier 39, in 1997 and 1998. These pups, which
were all weaned, most likely hauled out at K Dock due to El Nino, and
pups are not expected at the project site in ``normal'' years.
Pacific Harbor Seals
Although not commonly observed at Pier 39, Pacific harbor seals
have been documented as visitors to K dock numerous times in the past
decade. Harbor seals range from Baja California in Mexico northward to
the Aleutian Islands of Alaska. The population estimate for the
California stock is 34,233 individuals (Caretta et al., 2005) and is
relatively stable.
Harbor seals inhabit coastal waters within their range and prefer
sheltered bays and inlets to the exposed coastline. Daily haul-out
behavior of harbor seals is typically dependent on the tides, weather
and time of day. Harbor seals exhibit seasonal variation in
reproductive timing depending on geography. The pupping season for
California populations is in the spring, with populations in the San
Francisco
[[Page 61029]]
Bay typically bearing young from March 15 through May 31 (Green et al.,
2001). There are two active pupping sites in the San Francisco Bay,
Mowry Slough in the South Bay and Castro Rocks in the North Bay. Pups
have been observed at Yerba Buena Island and Corte Madera Marsh in the
San Francisco Bay. No births have been witnessed at these locations,
but Yerba Buena is thought to be a potential pupping site. No harbor
seal pups have ever been seen at Pier 39.
Annual counts of harbor seals at Pier 39 range from 0 seals
observed in 1999 and 2004, to a high of nine observations in 2000 for a
total of 28 observations between 1997-2004. No more than two harbor
seals have been observed hauled out simultaneously at any given time at
K Dock. No harbor seals have been observed hauling out at Pier 39 July
through September. No pups have been observed at Pier 39. Observations
by MMC volunteers indicate that observed harbor seals at Pier 39 tend
to distance themselves from the California sea lions hauling out in the
vicinity.
Potential Effects of Activities on Marine Mammals
The applicant is authorized to take small numbers of California sea
lions and Pacific harbor seals, by Level B harassment only, incidental
to the dredging activities described previously. Level B harassment may
occur if hauled animals flush the haulout and/or move to increase their
distance from dredging-related activities, such as noise associated
with dredging, presence of a crane barge, the presence of workers, or
unfamiliar activity in proximity to the haulout site. This disturbance
from acoustic and visual stimuli is the principal means of marine
mammal taking associated with these activities.
Sudden brief noises have been shown to elicit startle reactions in
some pinnipeds. Novel looming visual stimuli may induce similar startle
reactions in pinnipeds. Daily engine starts and movements of the dredge
bucket and vessel may induce startled and/or flight behavior in marine
mammals using K dock as a haul out. However, this area has become a
tourist spot for viewing sea lions, and the current population of
animals utilizing K dock is accustomed to human activities and regular
noise levels from people, traffic, use of nearby boat slips, and other
marine operations. If animals do flush into the water, they may return
to the haul-out site immediately, stay in the water for a length of
time and then return to the haul-out, or temporarily haul-out at
another site. Many factors contribute to the degree of behavioral
modification, if any, including seasonality, group composition of the
pinnipeds, type of activity they are engaged in and what noises they
may be accustomed to experiencing. Short-term reactions such as startle
or alert reactions are unlikely to disrupt behavior patterns such as
migrating, breeding, feeding and sheltering, nor would they be likely
to result in serious injury to marine mammals.
The small, self-contained, clamshell dredge used for this activity
may produce noise of a sufficient level to behaviorally harass marine
mammals at K dock. Measured sound exposure levels (SELs) of similar
equipment ranged between 75-88 dBA (re 20 microPa) measured at 50 feet
(the closest distance that the dredge unit will be to K dock) (Boeing,
2005). Results of an ongoing study at Vandenberg Air Force Base of the
effects of rocket launches on pinnipeds indicate that the percentage of
Pacific harbor seals leaving the haul-out increases with noise level up
to an SEL of approximately 100 dBA, after which almost all seals leave,
although recent data have shown that an increasing percentage of seals
have remained on shore during the noise, and those that remain are
adults. Though harbor seals are more sensitive to audio stimuli than
sea lions, these results indicate that animals are flushed at an SEL
less than 100 dBA, and it is possible that marine mammals at K Dock may
modify their behavior as a result of the lesser dredge noise.
If startle reactions were accompanied by large-scale movements of
marine mammals, such as stampedes into the water, the disruption could
escalate into Level A harassment and could result in injury of
individuals, especially if pups were present. However, due to the
uniqueness of this particular haul-out area, the unlikely presence of
pups, and the proposed shut-down procedures should pups be sighted,
NMFS believes there is a very low likelihood of such injury occurring
at the Pier 39 site. Specifically, the haul-out consists of many
separate floating platforms that can hold up to about 25 marine mammals
each. If disrupted to the point of flushing off the platforms,
pinnipeds can quickly leap or roll into the water in any direction off
the relatively small platforms, avoiding a dangerous stampede-like
situation that may occur at normal haul-out locations such as exposed
rocks. Additionally, marine mammal pups use this haul-out very
infrequently (approximately 10 pups have been sighted at K Dock, in
1997 and 1998, during El Nino), further reducing potential harm to the
species.
Over the last 13 years, BMMI has observed that sea lions either
ignore various unfamiliar intrusions and remain hauled out, or adapt to
them and eventually become habituated and return to their normal
behavior. Disturbance from these proposed dredging activities is
expected to have a only a short-term negligible impact to a small
number of California sea lions relative to their population size and a
few Pacific harbor seals. At a maximum, short-term impacts are expected
to result in a temporary reduction in utilization of K dock as a
haulout site while work is in progress or until seals habituate to the
disturbance. The project is not expected to result in any permanent
reduction in the number of animals at Pier 39. NMFS agrees with BMMI
that effects will be limited to short-term and localized behavioral
changes falling within the MMPA definition of Level B harassment.
Mitigation
To minimize disturbance of marine mammals from visual and acoustic
stimuli associated with the dredging activities, BMMI will use a small
(relative to the range of sizes of equipment that could accomplish the
task) clamshell dredge that can easily target the specific areas to be
dredged. The smaller equipment will also minimize the amount of
turbidity resulting from the dredging activities. The dredge material
will be immediately loaded onto a barge and transported to a nearby
terrestrial disposal site at Piers 96 and 98, which will allow for a
shorter project duration.
When not in use, the clamshell dredge and dredge barge will be
parked as far as feasible from the K Dock. After starting engines in
morning, the clamshell dredge will be moved as slowly as possible to
the area to be dredged and the dredge head lowered slowly and carefully
into the water.
As mentioned previously, if a Steller sea lion of any age or a
marine mammal pup of any species is spotted at any time during dredging
operations, operations will cease until the animal has left the area.
Monitoring
The K dock haulout will be monitored periodically during dredging
activities by two NMFS-approved observers according to the following
schedule:
(1) During the week prior to the commencement of dredging
activities, morning counts will be taken every morning at the same
time. One afternoon count will be taken at approximately the same time
the
[[Page 61030]]
dredging is scheduled to stop in the following days.
(2) During the dredging operations:
- One count will be taken every morning before dredging work begins
and every afternoon once operations cease.
- On the first day of dredging and on one other day near the end of
dredging operations, monitors will be present all day (starting one
hour before operations begin and remaining until 2 hours after
operations cease) and they will document specific behaviors as they
relate to specific aspects of the dredging operations and other
activities. An additional count will be conducted 2 hours after
dredging operations cease. Rates of departure and arrival of animals
from/to the haulout will be noted.
(3) Following completion of the dredging:
- Morning counts (taken at approximately same time as those taken
previously (See 1)) will be made every day for a week.
- An afternoon count will be conducted the day after dredging
ceases and on the last day of the post-dredging monitoring.
(4) During all monitoring periods the following data will be
recorded: date, time, observer, tidal height, species present, maximum
number of animals hauled out, number of adults and sub-adults, number
of males and females (if possible), any observed behavioral
disturbances to the animals, and the number of animals disturbed (for
example, if animals flushed, reports should include the number of
animals that returned to the water, and those that remained hauled
out). During periods of dredging a description of dredging activities
will also occur (including location of dredge, i.e., between J and K
Docks, or between I and J Docks).
Reporting
A draft report will be submitted to the NMFS Southwest Assistant
Regional Administrator for Protected Resources and to the NMFS Division
of Permits, Conservation, and Education, Office of Protected Resources,
within 90 days after project completion. A final report will be
submitted within 30 days of receiving NMFS' comments, if any, on the
draft report. The Report will contain, analyze, and summarize the
information required under Monitoring, above. BMMI will share data
collected as a result of these monitoring activities with other
interested parties, such as the Marine Mammal Center and other boat
marinas.
Numbers of Marine Mammals Expected to be Harassed
The effects of the proposed dredging activities are expected to be
limited to short-term startle responses and localized behavioral
changes. NMFS anticipates that small numbers of California sea lions
and Pacific harbor seals will effected.
The highest number of California sea lions ever counted at one time
on the K Dock between June 1 and November 30 was 1244 individuals in
August 2003. The average number of individuals counted at one time
within the work window since 2000 is lowest in July (169) and highest
in September (709). Based on an average of 169 to 709 animals over the
maximum of 14 days, NMFS estimates that California sea lions could be
exposed to audio or visual stimulus likely to cause harassment between
2360 and 9930 times. However, based on review of the Pier 39 observer
logs maintained over the last 14 years, which indicate that sea lions
may remain in the area and haul out for several days in a row at the K
dock, NMFS estimates that between 1180 to 4965 individual California
sea lions (approximately 0.5 to 2 percent of the population) will be
harassed. These are small numbers relative to the size of the affected
species or stock.
The highest total number of harbor seals ever seen in one month
between June 1 and November 30 was 3 in November of 1997. NMFS
anticipates that no more than 3 Pacific harbor seals will be harassed
by this activity (less than 0.01 percent of the population). These are
small numbers relative to the size of the affected species or stocks.
Potential Effects of Proposed Activities on Marine Mammal Habitat
NMFS anticipates that the proposed action will result in minor and
short-term effects on marine mammal habitat, including a temporary
increase in the turbidity in the area of the dredging and a temporary
decrease in the quality of K dock as a haul-out site as a result of
increased visual and audio stimuli.
Potential Effects of Proposed Activities on Subsistence Needs
There are no subsistence uses for California sea lions or Pacific
harbor seals in California waters, and thus, there are no anticipated
effects on their availability for subsistence uses.
Endangered Species Act
Though a single Steller sea lion has infrequently been sighted at
the K Dock, BMMI plans to cease dredging operations immediately if one
is seen, and not begin dredging again until the animal has left the
area of its own volition. NMFS does not anticipate any impacts to
Steller sea lions to result from the issuance of the IHA.
In the 1998 programmatic Biological Opinion addressing dredging in
San Francisco Bay, NMFS established a June 1 to November 30 work window
for dredging activities in the San Francisco Bay to avoid impacts to
steelhead trout and Chinook salmon. BMMI proposes to dredge between
June 1 and November 30, and therefore NMFS does not anticipate any
impacts to ESA-listed fish.
National Environmental Policy Act (NEPA)
NMFS prepared an Environmental Assessment (EA) on the Issuance of
an IHA for the Dredging at Pier 39 and issued a Finding of No
Significant Impact on October 13, 2005. A copy of the EA and FONSI are
available upon request (see ADDRESSES).
Preliminary Conclusions
Based on the preceding information, and provided that the proposed
mitigation and monitoring are incorporated, NMFS has preliminarily
determined that the proposed completion of the dredging activities
described in this document and authorized in the 2005 IHA may result in
short-term and localized changes in behavior by small numbers of
California sea lions and Pacific harbor seals. In addition, no take by
injury or death is anticipated, and take by harassment will be at the
lowest level practicable due to incorporation of the mitigation
measures mentioned previously in this document. While behavioral
modifications may be made by the pinnipeds, including temporarily
vacating the K Dock haulout, NMFS has preliminarily determined that
these proposed takings will have a negligible impact on California sea
lions and Pacific harbor seals.
Proposed Authorization
NMFS proposes to issue an IHA to BMMI for the take, by Level B
harassment only, of small numbers of California sea lions and Pacific
harbor seals incidental to the completion of the previously authorized
maintenance dredging around I, J, and K Docks at Pier 39 in San
Francisco, provided the previously mentioned mitigation, monitoring,
and reporting requirements are incorporated.
[[Page 61031]]
Dated: October 10, 2006.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. E6-17240 Filed 10-16-06; 8:45 am]
BILLING CODE 3510-22-S